Wallace v. Taylor

Case: 22-20342 Document: 00516713338 Page: 1 Date Filed: 04/14/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

April 14, 2023

No. 22-20342 Lyle W. Cayce

____________ Clerk

Floyd Wallace,

Plaintiff—Appellee,

versus

Heather Taylor, in her individual and official capacities; James

Hartley, in his individual and official capacities; Tyson Hamilton, in

his individual and official capacities,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-292

______________________________

Before Richman, Chief Judge, and Haynes and Graves, Circuit

Judges.

James E. Graves, Jr., Circuit Judge:*

Defendants Heather Taylor, James Hartley, and Tyson Hamilton

appeal the district court’s denial of their motion to dismiss seeking qualified

immunity from Plaintiff’s claims. They are each entitled to qualified

immunity, so we REVERSE and RENDER.

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 22-20342

I. Background

a. Factual Background

Plaintiff Floyd Wallace alleges the following facts in his first amended

complaint. On February 21, 2021, Wallace was walking around the parking

lot of the Tomball Police Department (“TPD”) while recording on his body

camera1 and cell phone. As he was walking away, TPD officer Taylor pulled

up in her police SUV with the emergency lights activated. She told Wallace,

“Hey man, get over here. Come here” and asked, “What are you doing over

here? What are you doing behind the police tower?” Taylor continues to ask

Wallace what he was doing behind the police tower in the parking lot when

TPD officer Hamilton approaches. A moment later, Wallace heard a police

siren and saw another police SUV approaching him. He said “I don’t have

time for this sh--. I’m out,” and he walked away from Taylor and Hamilton.

The vehicle pulled over in front of him, and TPD officer Lopez got out and

approached Wallace. Wallace asked why he was being detained, and Lopez

responded that he heard he had run from one of the other officers. Taylor

told Lopez that Wallace was “creeping around behind the police tower

crouching down right by it and as soon as he saw me, he f---ing bolted.” Lopez

asked Wallace what he was doing in the parking lot and if he was damaging

their property. He then handcuffed Wallace and told him he was being

detained for an investigation of potential criminal mischief.

Lopez, Taylor, and Hamilton repeatedly demanded that Wallace

provide them with his ID card. Wallace refused, claiming he did not have to

provide any identifying information unless he was under arrest. The officers

patted Wallace down and placed him on the ground where they directed him

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1

Wallace recorded most of the encounter on his own body camera and included

the footage as Exhibit 1 to his first amended complaint.

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to sit. Two other TPD officers then arrived at the scene, including Hartley.

After speaking with someone on the phone, Taylor directed Hartley and

Hamilton to stand Wallace up and search him for his wallet so they could

identify him. Wallace repeatedly protested that he did not consent to

searches. Hartley and Hamilton searched Wallace, but they did not find a

wallet on him. Lopez returned and told Wallace that Taylor checked out the

police tower and observed that one of its tires looked as if it was not properly

inflated. Lopez also told Wallace that Taylor was speaking with the District

Attorney so they could bring criminal charges against him. In hopes of

avoiding arrest, Wallace verbally provided his name, birthday, and address.

The officers picked Wallace up from the ground, and Taylor told him he was

under arrest for evading a police officer and failing to identify himself.

Wallace was held temporarily at the police station and later transferred to the

Harris County jail.

The District Attorney brought only one charge against Wallace:

evading arrest from Lopez. At a probable cause hearing, the magistrate

determined there was not sufficient probable cause to support the charge, and

Wallace was immediately released.

b. Procedural Background

On January 28, 2022, Wallace filed his original pro se complaint against

the City of Tomball and officers Taylor, Hartley, Hamilton, and Lopez. After

the City, Taylor, Hartley, and Hamilton moved to dismiss the claims against

them, Wallace filed his first amended complaint. Wallace attached four

exhibits: his body camera footage, an affidavit from another citizen who

filmed the incident, the criminal complaint against him, and a recording of

his probable cause hearing. He alleged five counts: 1) A Fourth Amendment

unreasonable seizure claim against Taylor and Lopez; 2) A Fourth

Amendment unreasonable search claim against Hamilton and Hartley; 3) A

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First Amendment claim against Lopez; 4) A Fourteenth Amendment

malicious prosecution claim against Taylor and Lopez; and 5) A Monell claim

against the City of Tomball for failure to train.

The City, Taylor, Hartley, and Hamilton again moved to dismiss

Wallace’s claims against them. The individual Defendants asserted qualified

immunity. Lopez did not join the motion to dismiss filed by the other

individual Defendants, so he is not a party to this appeal. The district court

granted the City’s motion to dismiss. But it denied qualified immunity to the

individual Defendants in a terse order, stating in relevant part:

The Court is of the opinion that the defendants’ defense of

qualified immunity is premature. Moreover, the facts

presented, in their totality, do not support dismissal of this suit.

...

In the case at bar, the plaintiff’s pleadings proffer the claim that

he was wrongfully arrested and detained based on suspicions

that the officers determined were unfounded and, yet, they

engaged in a malicious prosecution when the basis for the

plaintiff’s arrest/detention did not ‘pan-out’. Moreover, the

plaintiff asserts, the judge dismissed the charges that the

officers’ asserted.

In the Court’s opinion, it may be argued that the officers had a

proper basis to question and/or temporarily detain the plaintiff

until their suspicions were determined to be unfounded.

However, qualified immunity does not shield officers from

insisting on being ‘right’ and placing charges against a citizen

when their suspicions are proved unfounded.

Taylor, Hartley, and Hamilton (hereinafter “Defendants”) timely filed a

notice of appeal.

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II. Jurisdiction & Standard of Review

We have jurisdiction to review a denial of a motion to dismiss seeking

qualified immunity “only to the extent that the appeal concerns the purely

legal question [of] whether the defendants are entitled to qualified immunity

on the facts[.]” Armstrong v. Ashley, 918 F.3d 419, 422 (5th Cir. 2019)

(citation omitted).

We review the district court’s denial of the qualified immunity

defense de novo, accepting all well-pleaded facts as true and viewing them in

the light most favorable to the plaintiff. Morgan v. Swanson, 659 F.3d 359, 370

(5th Cir. 2011) (en banc). Where video recordings are included in the

pleadings, the video depictions of events, viewed in the light most favorable

to the plaintiff, should be adopted over the factual allegations in the

complaint only if the video “blatantly contradict[s]” those allegations.2

Harmon v. City of Arlington, Texas, 16 F.4th 1159, 1163 (5th Cir. 2021) (citing

Scott v. Harris, 550 U.S. 372, 380 (2007)).

III. Discussion

Defendants have asserted the defense of qualified immunity. Qualified

immunity provides government officials with immunity from suit “insofar as

their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). We apply a two-part test: (1) whether the plaintiff

has alleged a violation of a constitutional right; and (2) if so, whether the right

was clearly established at the time of the violation. Cooper v. Brown, 844 F.3d

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2

We confine our analysis to Defendants’ conduct as alleged in Wallace’s first

amended complaint since his allegations are not blatantly contradicted by the video

recordings.

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517, 522 (5th Cir. 2016) (citation omitted). Both questions are matters of law.

Id.

A preliminary point before we begin our discussion. Ordinarily, each

individual defendant’s entitlement to qualified immunity should be analyzed

separately. Carroll v. Ellington, 800 F.3d 154, 174 (5th Cir. 2015). When the

district court has not engaged in the proper individualized analysis, we can

either remand or conduct the analysis ourselves. Compare Kitchen v. Dallas

Cnty., Tex., 759 F.3d 468, 478–79 (5th Cir. 2014) (“the district court must

also ‘examine[ ] the actions of defendants individually in the qualified

immunity context’ . . . The district court has not yet addressed this issue[]

and must do so on remand”) (citation omitted), with Ramirez v. Guadarrama,

3 F.4th 129, 137 n.4 (5th Cir. 2021), cert. denied, 142 S. Ct. 2571 (2022) (“We

agree with Jefferson that the district court failed to engage in an

individualized analysis, and that its collective treatment of the defendant

officers’ actions was error. This point is, however, inconsequential, as we

find that both officers are entitled to qualified immunity.”). Here, we

exercise our discretion to conduct the QI analysis ourselves.

a. Unreasonable Seizure

Wallace alleges that Taylor violated his Fourth Amendment rights by

seizing him without probable cause. Wallace makes this claim with respect to

his investigative detention and ultimate arrest.

For his investigative detention, “police officers may stop and briefly

detain an individual for investigative purposes if they have reasonable

suspicion that criminal activity is afoot.” Carroll, 800 F.3d at 171 (internal

quotation marks and citation omitted). Reasonable suspicion requires “the

police officer . . . to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion.” United States v. Rodriguez, 564 F.3d 735, 741 (5th Cir. 2009)

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(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). According to Wallace’s

complaint, Taylor saw Wallace crouched down by the police tower in the

parking lot. In his response to Defendants’ motion to dismiss, Wallace

explained that “after looking at the police tower, a portable surveillance

tower, in the parking lot[, he] ran a short distance across the parking lot and

then began to walk to other areas of the Police Station.” Taylor and Lopez

repeatedly asked Wallace what he was doing behind the police tower in the

parking lot and if he had damaged TPD property. They placed Wallace

under investigative detention for criminal mischief, and Taylor checked to

see if the tower had been tampered with.

Wallace admits that he was standing near the police tower in the TPD

parking lot and then ran a short distance away. This activity alone was

sufficient for Taylor to have a reasonable suspicion that Wallace was

tampering with the police tower, so she had authority to detain Wallace, ask

him what he was doing, and investigate whether the police tower had been

tampered with. Since this is what Wallace alleges she did, at a minimum, it

was not clearly established that Taylor was committing a constitutional

violation during Wallace’s initial detention.

For Wallace’s arrest, Taylor is entitled to qualified immunity unless

there was no actual probable cause for the arrest and Taylor’s decision to

arrest was objectively unreasonable in light of clearly established law. Crostley

v. Lamar Cty., 717 F.3d 410, 422–23 (5th Cir. 2013). “The Supreme Court

has defined probable cause as the ‘facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense.’” Piazza v.

Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000) (quoting Michigan v. DeFillippo,

443 U.S. 31, 37 (1979)). “If an officer reasonably but mistakenly believes that

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probable cause exists, [she] is entitled to qualified immunity.” Carroll, 800

F.3d at 172 (internal quotation marks and citation omitted).

Wallace argued before the district court that there was no probable

cause to arrest him for evading arrest because the officers did not attempt to

lawfully arrest or detain him. Tex. Penal Code § 38.04 (“A person

commits an offense if he intentionally flees from a person he knows is a peace

officer or federal special investigator attempting lawfully to arrest or detain

him.”). Wallace was only charged with evading arrest from Lopez. However,

when considering wrongful arrest claims, we “apply an objective standard,

which means that we will find that probable cause existed if the officer was

aware of facts justifying a reasonable belief that an offense was being

committed, whether or not the officer charged the arrestee with that specific

offense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

Even if there was no probable cause to arrest Wallace for evading arrest from

Lopez, Wallace must also show there was no probable cause to arrest him for

evading arrest from Taylor.

As discussed above, Taylor had reasonable suspicion to lawfully

detain Wallace for an investigation. Cf. Goodson v. City of Corpus Christi, 202

F.3d 730, 740 (5th Cir. 2000) (“if the detention was not lawful, then even if

[plaintiff] fled, [the officers] would not have had probable cause to believe

that [plaintiff] was violating § 38.04(a).”). The next question is whether

Taylor was attempting to arrest or detain Wallace. Wallace argues that Taylor

was not attempting to arrest or detain him because she did not tell him he was

being arrested or to stop when he started walking away. Defendants argue

that Taylor had probable cause to arrest Wallace for evading arrest because a

reasonable officer in Taylor’s situation would have understood that Wallace

committed the “offense by ignoring her command to ‘come here’ and

walking away.” In support, Defendants cite to Texas courts affirming

convictions for evading arrest where defendants fled after being directed to

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“come here.” Cash v. State, No. 07-17-00173-CR, 2017 WL 6614270, at *1

(Tex. App.—Amarillo Dec. 19, 2017, no pet.) (“Such was enough for a

rational fact-finder to conclude, beyond reasonable doubt, that it was

appellant who departed after the trooper directed him to ‘come here.’”);

Graves v. State, No. 01-19-00868-CR, 2020 WL 7349101, at *6 (Tex. App.—

Houston [1st Dist.] Dec. 15, 2020, pet. ref’d) (“Officer Luna ordered

appellant to ‘come here’ or ‘stop.’ However, rather than comply, appellant

ignored the officers’ repeated commands to stop and began sprinting across

the street away from the officers.”); see also Hervey v. State, No. 10-17-00140-

CR, 2017 WL 6614656, at *2 (Tex. App.—Waco Dec. 27, 2017, no pet.)

(“The attempted detention occurred immediately upon the command of

Detective Dunagan for Hervey to ‘Come here, man!’ upon exiting the

unmarked vehicle.”).

Again, Wallace alleged that Taylor pulled up in a police SUV with the

emergency lights activated. Taylor directed Wallace repeatedly to “come

here.” Even without telling Wallace to stop or that he was under arrest, a

reasonable officer could believe that activating emergency lights and

commanding Wallace to “come here” are a sufficient show of authority to

put him on notice that he or she intends to detain him. Cf. United States v.

Wright, 57 F.4th 524, 532 (5th Cir. 2023) (When an officer quickly pulled up

behind the defendant’s parked vehicle “with emergency lights engaged, she

was showing a sign of authority clearly communicating to [defendant] he was

not free to leave.”); see also Redwine v. State, 305 S.W.3d 360, 362 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (“A person commits a crime

under Section 38.04 only if he knows a police officer is attempting to arrest

him but nevertheless refuses to yield to a police show of authority.”). While

Wallace was stopped by Lopez soon after he walked away from Taylor,

“[e]ven a dispirited, brief attempt to walk away from an officer’s command

to stop has been held to be sufficient flight to constitute evading arrest or

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detention.” Henderson v. State, No. 12–09–00399–CR, 2011 WL 2162820, at

*5 (Tex. App.—Tyler May 31, 2011, no pet.) (collecting cases). Based on the

facts alleged in Wallace’s first amended complaint, Taylor’s decision to

arrest Wallace was not objectively unreasonable in light of clearly established

law. Accordingly, Taylor is entitled to qualified immunity from Wallace’s

unlawful detention and unlawful arrest claims against her.

b. Unreasonable Search

Wallace also alleges that Hartley and Hamilton violated his Fourth

Amendment rights by searching his person without his consent. The officers

searched Wallace for his wallet after he refused to identify himself. When

Hartley and Hamilton stood him up to search him, he repeatedly asked the

officers to stop searching and proclaimed that he did not consent to searches.

Defendants argue that Hartley and Hamilton’s search was a valid search

incident for a weapon, but Wallace alleges that the stated purpose of the

search was to find his wallet so the officers could identify him. This court

recently confronted a similar claim in McCullough v. Wright, 824 Fed. App’x.

281 (5th Cir. 2020).3 There, the officers arrested the plaintiff for interference

of public duties, and they searched her wallet for identification after she

refused to identify herself. Id. at 287. In an unpublished opinion, we

concluded that plaintiff had “failed to show that it is clearly established that

a limited search for the sole purpose of procuring identification, after an

uncooperative arrestee refuses numerous requests to identify herself, violates

the Fourth Amendment.” Id. However, the plaintiff in that case was already

under arrest, so the officers performed a search incident to a lawful arrest.

Here, Wallace alleges the officers searched him while he was under

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3

Although an unpublished opinion issued on or after January 1, 1996 is generally

not precedential, it may be considered as persuasive authority. Ballard v. Burton, 444 F.3d

391, 401 & n.7 (5th Cir. 2006).

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investigative detention and before he was arrested. The Texas Court of

Criminal Appeals has explained the materiality of this distinction:

Though an officer may ask a defendant to identify himself

during a valid investigative detention, that does not

automatically mean that the officer can search a defendant’s

person to obtain or confirm his identity. Consequently, the

officer’s conduct of reaching into appellant’s pocket—even

under a valid investigative detention—was an illegal search

unless there existed some exception to the usual probable cause

requirement.

Baldwin v. State, 278 S.W.3d 367, 372 (Tex. Crim. App. 2009) (citation

omitted). Nevertheless, the Texas Court of Criminal Appeals has also held

that “[i]t is irrelevant that the arrest occurs immediately before or after the

search [incident], as long as sufficient probable cause exists for the officer to

arrest before the search.” State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim.

App. 1999) (citation omitted); see also Thornton v. Beto, 470 F.2d 657, 659 (5th

Cir. 1972) (“The fact that the search was commenced shortly before the

arrest was made does not vitiate the search as incident to the arrest since

there was probable cause to arrest without regard to the fruits of the

search.”). Even if the officers had not formally arrested Wallace yet, Wallace

had already walked away from Taylor. Assuming that Wallace’s detention

had not already amounted to a formal arrest,4 Wallace has failed to show it is

clearly established that, in a situation where officers reasonably believe they

have probable cause to arrest someone, a search to procure identification

after the detainee refuses to identify himself violates the Fourth Amendment.

Cf. McCullough, 824 Fed. App’x. at 287. Hartley and Hamilton are entitled

_____________________

4

See Turner v. Lieutenant Driver, 848 F.3d 678, 693 (5th Cir. 2017) (explaining

when an investigative stop amounts to an arrest).

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to qualified immunity from Wallace’s Fourth Amendment claim against

them.

c. Malicious Prosecution

Lastly, Wallace alleges a malicious prosecution claim against Taylor

for initiating the evading arrest charge against him. When Wallace filed his

first amended complaint on March 16, 2022, this court did not recognize a

freestanding federal claim for malicious prosecution. Castellano v. Fragozo,

352 F.3d 939, 942 (5th Cir. 2003) (en banc) (holding that “‘malicious

prosecution’ standing alone is no violation of the United States

Constitution.”). However, the Supreme Court later held that litigants may

bring Fourth Amendment malicious prosecution claims under § 1983.

Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). Accordingly, we recently

recognized that Thompson overruled Castellano and reinstated our prior six-

element malicious prosecution claim from Gordy:

(1) the commencement or continuance of an original criminal

proceeding; (2) its legal causation by the present defendant

against plaintiff who was defendant in the original proceeding;

(3) its bona fide termination in favor of the present plaintiff; (4)

the absence of probable cause for such proceeding; (5) malice;

and (6) damages.

Armstrong v. Ashley, 60 F.4th 262, 279 (5th Cir. 2023) (citing Gordy v. Burns,

294 F.3d 722, 727 (5th Cir. 2002)). In addition to proving each of these

elements, plaintiffs must also prove “the threshold element of an unlawful

Fourth Amendment seizure.” Id. “[I]f the prosecution is supported by

probable cause on at least one charge, then a malicious prosecution claim

cannot move forward.” Id. at n.15. Therefore, Wallace must sufficiently

allege each of these elements in order to bring a claim for malicious

prosecution.

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When there is a change in law during the pendency of an appeal, this

court will generally remand to give the parties and the district court an

opportunity to address the new standard. See, e.g., Luke v. CPlace Forest Park

SNF, L.L.C., 608 F. App’x 246 (5th Cir. 2015) (remanding grant of summary

judgment after the Supreme Court issued a decision abrogating relevant Fifth

Circuit precedent). However, in order to overcome Taylor’s assertion of

qualified immunity, Wallace must ultimately show that his Fourth

Amendment right to be free from malicious prosecution “was clearly

established at the time of the alleged violation.” Cooper, 844 F.3d at 522. This

court did not recognize a federal malicious prosecution claim at the time

Wallace was charged with evading arrest, and “[a] claim that we ha[d]

expressly not recognized is the antithesis of a clearly established one.” Watts

v. Northside Indep. Sch. Dist., 37 F.4th 1094, 1096 (5th Cir. 2022); Morgan v.

Chapman, 969 F.3d 238, 251 (5th Cir. 2020) (“Under this circuit’s

precedents, there is no constitutional right to be free from abuse of process

or malicious prosecution.”). While the Fourth Amendment right to be free

from arrest absent probable cause has been clearly established for some time,

there was no clearly established Fourth Amendment right to be free from

malicious prosecution at the time of Wallace’s arrest. Therefore, Taylor is

entitled to qualified immunity from Wallace’s malicious prosecution claim.

IV. Conclusion

For the reasons stated above, we REVERSE the district court’s

denial of qualified immunity as to Taylor, Hartley, and Hamilton and

RENDER judgment in their favor.

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